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Bar Journal - December 1, 2001

New Hampshire's Rangeways

By:

Rev. August 28, 2001

This article reviews the title status of the "rangeways" reserved for highway purposes by the proprietors of the Masonian and New Hampshire Grants when they laid out the towns of New Hampshire. Rangeways or range roads are highways of varying widths reserved by the proprietors. They commonly follow the lot and range lines of the original town lotting plans. The rangeways were sometimes drawn on the town lotting plans and sometimes were described in the proprietorsí records as a written description.1 

There are two major schools of thought addressing the current status of the title to these strips of land. The "fee simple school" argues that fee title to the range ways were reserved by the proprietors as separate parcels of land. The fee simple title then passed to the town corporate body, where, barring any transfer, the title rests today. Conversely, the "easement school" argues that the rangeways were dedicated as easements, for highway purposes only, and that the fee title to the land passed to the abutters. The abutters obtained title according to the long recognized common law rule that a lot bounded by a highway passes fee title to the centerline of the highway subject to the rights of the public to use the highway easement unless there is express language in the grant that reserves the fee in the grantor.2 

This article argues that the statutory and common laws of New Hampshire come down on the side of the easement theorists. The colonial proprietors were private landowners much like modern land developers. When subdividing their holdings, the proprietors dedicated the rangeways to the public as easements for highway purposes. These dedications were in the form of easements only; the fee title to the lands under the rangeways passed to the abutting lot owners, unless there was explicit contrary language in the original lot layout reserving the fee to the proprietors. These dedications could be used by the public for the layout of roads by the government without having to pay damages to the holder of the fee title landowner. If the rangeway was not utilized for road purposes by 1842, the New Hampshire Revised Statutes acted to discontinue any rights the town had in the dedicated but unaccepted easement ending the publicís right in the rangeway.

It is important to note that the early records of each town should be reviewed on a case-by-case basis to determine if there is express language reserving the fee in the rangeways to the proprietors. To then establish ownership in the town corporate body, there must be a conveyance from the proprietors to the town.

It is interesting to note that a clear and concise definition of "rangeway" or "range way" could not be found in early legal dictionaries, encyclopedia and related resources. It is possible to divide the phase creating a combined definition of "range" and "way." Using this approach, a range "[i]n a government survey ... designates a row or tier of townships as they appear on the map."3  A way is defined as

[a] passage, path, road or street. In a technical sense, a right of passage over land. A right of way is the privilege which an individual, or a particular description of persons, as the inhabitants of a village, or the owners or occupiers of certain farms, have of going over anotherís ground. It is an incorporeal hereditament of real nature, entirely different from a public highway." 4 

This simple analysis of the definitional language infers that range ways were intended to be a reservation of the right of passage only. However, more investigation is appropriate.

HISTORICAL BACKGROUND - THE MASONIAN PROPRIETORS

"New Hampshire was given away by the crown before it was settled. ... In 1629 [John] Mason became sole proprietor; and the remnant of his title is recognized in the fifth section of the act of Feb. 27, 1786, for mending highways, the act of Jan. 16, 1787, about waste lands, and in the Rev. Stats. of 1842, ch. 143."5  The Mason and Georges patent (grant of land by the English King) of 1622 and the Mason patent of 1629 were the focus of much litigation during early New Hampshire history. Suffice it to say that the residue of John Masonís estate containing much of the previously ungranted lands of New Hampshire went "to his grandson John Tufton, he taking the sirname of Mason, and to his lawful issue ..."

On July 30, 1746, John Tufton Mason deeded his interest in the New Hampshire patent to a group of men that have become known as the "Masonian Proprietors" or simply "The Proprietors." The Mason deed described a 60 mile arch in what is now the southeasterly portion of New Hampshire as:

containing two Hundred thousand Acres more or less bounded as follows Viz beginging at ye Mouth of Piscataqua River thence up ye Same to ye farthest Head of Newichewannick River so calld & to the farthest Head thereof & thence Northwestward until Sixty miles be compleated from ye mouth of Piscataqua River aforesaid ye Place where it began & then from Piscataqua River aforesaid along ye Sea Coast towards Merrimack River until it comes to ye Boundary Line between ye sd Province of New-Hampshire & ye Province of ye Massachusets-Bay then runing as ye Said Boundary Line runs until Sixty Miles be compleated from ye Sea the running from ye Westerly End of ye Sixty Miles last mentioníd across ye Land to ye Northerly End of ye Sixty Miles first mentioníd together with ye Southwest Half of ye Isles of Shoals ....7 

The description in the deed encompassed an area within a 60-mile arch centered at the mouth of the Piscataqua River. The King of England retained title to the areas in New Hampshire outside of the Masonian Proprietorsí claim. The King commissioned a succession of royal governors of the colony. Each governorís commission included the power to grant these leftover lands for development purposes.

The Masonian Proprietors were wealthy men, mostly from the seacoast area and included: From Portsmouth, Province of New Hampshire; Theodore Atkinson, Richard Wibird, John Moffatt, Mark Hunking Wentworth, Samuel Moore, Jotham (sic) Odiorne, Jr., Joshua Peirce, Esq., Nathaniel Meserve, George Jaffrey, Jr. and John Wentworth, Jr. From Summersworth, Province of New Hampshire; Thomas Wallingford, Esq. and from Greenland, Province of New Hampshire; Thomas Packer, Esq.10  These names are important as they repeatedly appear in the proprietorsí records and on town lotting plans. The records and plans depict the assignment of lots within the towns to the individual from the group. This "pitch" or "draw" (as commonly described in deeds) on a lotting plan becomes the beginning of the chain of title for that lot.11 

When the Masonian Proprietors purchased the proprietary claims of John Mason in 1746 a dispute arose over conflicting grants made by the Royal Governor overlapping the Masonian claim. The dispute was settled by a deed from the Proprietors to the towns granted by the Governor. On July 31, 1746, the Proprietors quitclaimed to the towns of Portsmouth, Dover, Exeter, Hampton, Gosport, Kingstown, Derry, Chester, Nottingham, Barrington, Rochester, Canterbury, Bow, Chicester, Epsom and Barnstead:

[W]ith all and Singular the Estate, right, Title, Inheritance, Claim and demand of us and each and every of us of in and unto the same and every part thereof to us in any manner Belonging to Houses, Lands, Rivers, woods, mines, minerals and appurtenances Whatsoever. Excepting and Reserving to our Selves and such of us, and each of us, our Respective Heirs and assigns, all and each of several and Respective rights, Titles, Inheritance & Possession which we heretofore had in Common or in Severalty as Inhabitants or Proprietors of Houses & Lands within any of the Towns, Precincts, ....".12 

This sequence of transfers conveyed the title to lands originally granted by the King to John Mason, to John Tufton Mason, then to the Masonian Proprietors. The Proprietors then released their claims, as the assignee of John Masonís grant, to the corporate body of the towns previously granted by the Kingís Governors. Title to other proprietorships granted by Governor Wentworth within the 60 mile radius were also cleared in this way.13  This approach by the proprietors to settle the conflict avoided litigation with Governor Wentworth over the respective claims.14 

PROPRIETORSHIPS AND THEIR POWERS

Before discussing the rangeways, a review of The Proprietors and their powers is in order. From the time of the first settlements in the 1600ís until the early 1800ís grants of land were made by the Royal Governments of New Hampshire and the Masonian Proprietors to private land speculators known as proprietors. Chief Justice Jeremiah Smith wrote in 1809:

[t]his creature called a propriety is peculiar to New England; we find nothing like it in Great Britain. It is coeval with the grant of this country, and our towns are framed after the model of the ancient State or Commonwealth. A large tract of country was granted to a number of persons. To them belonged the right of soil. To the same men, by the same instrument, were granted the powers of government. This large tract of country was the Province or Commonwealth. When a town was granted to certain individuals by name, these persons were proprietors of the soil, and had also powers and privileges of a town. The latter powers could only be exercised by a corporate body, and therefore, without any act of incorporation, the grantees were deemed and taken to be a corporate body in the same manner as the whole State, i.e. the owners of the soil, were a body politic, and exercised powers of government upon a scale somewhat larger, indeed, than those exercised by towns. ... When a person was made free of the corporation, or in other words, received as a member, he thereby became interested in the town property and town privileges.

In process of time, when lands were granted on speculation, and not merely for settlement, the propriety and town began to be viewed as distinct bodies. All inhabiting within the limits of the territory granted were constituted a corporation, endowed with the franchises and privileges of towns. The powers of government were vested in this body. This body comprehended some, but not all of the proprietors of the soil; and many who owned no lands were members of the town corporation. The proprietors of the soil ceased to possess any powers of government, but they still retained as many of their cooperate powers as were necesary or useful, - such as the corporate power of managing, improving, dividing and disposing of the soil. N.H. Laws, ed. 1805, 191. ....

This I conceive to be the origin of proprieties. They are a corporation of a pecular kind, and with very limited powers. The share or interest of a member was grantable by deed; it was devisable and descendible. But I believe it never was holden that it could be taken for debt, or levied on. When the propriety had divided, or granted away, all the soil, it would seem that the corporate power ought to be considered as ipso facto dissolved. But this does not seem to have been the case. At least, statutes provided for the exercise of certain corporate powers after partition. Temporary Acts, 15, 37, Prov. Law. They do not cease when the town powers commence, or come into exercise. They cease when the object in view, by creating them, ceases; i.e. when the tract of land is so managed, improved, &c., as no longer to require their continuance. ....

[T]he doctrine I have stated is to be found, ... in the records of New England, in the decisions of courts. These powers are implied, and these doctrines recognized, in various statutes; but our statutes do not create proprietors of a township or large tract of land a propriety, or corporate body with corporate powers; they do not define their powers. They existed before we had any statute on the subject, at least any that can be found. Our statutes are framed on the idea that proprieties existed with certain corporate powers. ....

 

Though proprieties are a corporation for certain purposes, they are a corporation sui generis. Like the ancient towns, they may convey lands by vote. .... This conveyance of lands by vote is a part of the New England Common law. Our statute of 1718 expressly declares, in affirmance of this common law, that proprietors of common land undivided lands may dispose of them as shall be concluded and agreed on by the major part of the proprietors. .... 15 

As Chief Justice Smith explains, the propriety was a private corporation in the business of land development.16  The proprietorsí grant did not automatically carry with it the powers of government in the form of a body politic. Some grants made by the Royal Governor did, however, specifically include a the powers of "town corporate."17  The Masonian Proprietors, under their grant, were not a body politic and they did not hold the power to create such a political body. In many cases, after the Masonian grants were settled, and a sufficient population established, the residents petitioned either the Royal Governor or the General Assembly for governmental powers in the form of incorporation as a town.18  The Masonian proprietors and the proprietors of the grants claiming under them, were private corporate business entities subdividing and granting lands as modern land development companies do today.

As the settlement of New Hampshire grew extending beyond the original four towns of Portsmouth, Dover, Exeter and Hampton, during the late 1600ís and throughout the 1700ís, the focus changed from a compact town center designed for protection from Indian attack to large independent farm lots. "Behind this change in land use was the expanding role of speculation in land development, as towns were being laid out by investors not planning to live in the communities but intending to sell their holdings as quickly as possible."19 

The proprietors granted lots by vote. The vote was in lieu of a deed of conveyance. The documenting of these votes was commonly accomplished by listing the name of the lot owner (usually one of the proprietors) on the surveyed lotting plan.20  The individual proprietor would then convey the lot, or portions of it, with warranty deeds.

THE FEE SIMPLE SCHOOL

As outlined earlier, the fee simple school argues that the rangeways were reserved to the proprietors in fee. This argument is partly based on two early legislative statutes. The first statute enacted in 1766 stated:

Whereas the Select men of The Several Towns are by Law Enabled to Lay out high Ways for the use of the Towns and Particular Persons, but have no Power to Change them when Laid out, Nor to alter the Land left for highways in the Laying of Townships: & Whereas the Changing land left for highways, and highways themselves for other lands more convienient, may be often Done to advantage, not only to particular Persons, but whole Communitys, as after Settlement the Land may be better known:

Therefore,

Be it Enacted ... That the Select men of the Towns & Parishes, having Town Powers by the voice of the Major Part of the Voters present, at any legal meeting for this purpose, be & hereby are Impowered to exchange any lands left for highways, or any highways or any Part of them where a way is not necessary to be Continued, for other lands more suitable therfor, Making due Satisfaction in all the Foregoing cases, out of the Town stock or otherways, for the Same, to the owners or proprietors of the Lands through which said Highways shall run.21 

In an Act For Laying Out High Ways, in 1791, the legislature gave the towns the power to "discontinue any high way laid out ... and may sell the land taken up in such highway or exchange the same for some other land ... and they may also sell or exchange any land left or appropriated in such town for highways thoí not actually improved for that purpose ...."22 

The Environmental Law Clinic at Franklin Pierce Law Center proposed the fee simple theory in 1981. "There is little disagreement as to who originally owned the strips of land designated as range roads. It is clear that the towns believed they owned the land and were free to do with it what they wanted. Otherwise, how could towns justify the widespread practice of exchanging or selling these lands to secure land more suitable for use as roads? The statutes quoted above confirm this assumption."23 

From the language in the act, Cerasano deducts that the rangeways were reserved in fee by the proprietors and that the town corporate body obtained title to the strips of land. The analysis fails to recognize that the title to proprietary lands does not automatically vest in the town corporate body without a specific grant from the Proprietors.24  Even where there was a specific grant from the proprietors, the fundamental rule of title law stating that a grantee can only convey the title that he owns, trumps the assumption of a fee transfer. If, as this article proposes, the title in the towns through dedication of the rangeways was in the form of a dedication for a highway easement, then a later conveyance by the town can only convey or release the easement dedication interest that the town owned.

The fee simple theorist could also cite Copp v. Neal25 , where the Supreme Court sited in dicta that "[t]here is noting, however to preclude a town from holding the title to land over which highways are laid, and they have frequently claimed the title in cases of ancient rangeways laid out by the original proprietors."26  In Copp, the Town of Tuftonboro made a grant of the entire discontinued range road to Copp in exchange for a relocated road over Coppís land. The Court ruled in favor of Copp owning the entire range, bolstering the fee theory.

As further evidence, fee theorists point to numerous town road records that make reference to exchanges of land for a new road.27 

The weight of the law, however, creates a substantially different picture; one of the town owning only easement rights in the rangeways. The statutes in affect from 1766 to 1829 allowed the selectmen to sell or exchange the lands reserved for highways. However, the analysis must first investigate the extent of the underlying title interest that the towns had in the rangeway lands. A further review of statute and case law leads to the conclusion that, except in special cases, the proprietors of the towns reserved the rangeways as easements only.

THE EASEMENT THEORY

As early as 1816, the New Hampshire Supreme Court ruled that "[i]n highways laid out through the lands of individuals in pursuance of statutes, the public has only an easement, a right of passage; the soil and freehold remain in the individual, whose lands have been taken for that purpose."28  This well established rule has been clarified throughout the years to state "conveyance of property bounded by a street or highway normally conveys title to the center of the boundary street, unless clearly contrary language appears in the deed."29 

In a discussion of the methods of creating highways in New Hampshire, the Court stated in 1840 that:

[w]e are not aware that more than four modes of creating public highways have ever been recognized in this state. The statutes of the state point out two of these modes; firstly, by the authority of the selectmen of the different towns; and secondly, by the court of common pleas, acting through a road committee, or a board of road commissioners. The third mode is by charters, granted by the legislature to individuals, authorizing them to build turnpike roads, and to levy and collect tolls of those persons who travel upon them. The fourth mode is by long use of land by the public for the purposes of a highway, or by dedication of the land by the owners to the use of the public; and this mode is recognized by numerous decisions of this court.30 

The Court in New Boston went onto say:

[a]fter a highway has been established in any one of these modes [including dedication], the right acquired by the public in the land over which the highway passes is well settled in this state. This right is only an easement ... [t]he public acquire no interest in the soil, except so far as it may be necessary to use it within the limits of the highway, for the purpose of keeping the road in proper repair.31 

In 1844 the Court recognized that a dedication of roads could be made by showing them on subdivision plans.

The Nashua Manufacturing Company owned the land. ... Mr. Benjamin was the principal agent of the company, and that his first business was to lay out the grounds of the company in order to dispose of them; and that under his direction sundry plans were made having streets laid out upon them. There seems to be no doubt from this, that Benjamin was entrusted with the power to lay out streets, or in other words to lay out and dedicate land for streets or highways in the property of the company.32 

As discussed in prior sections, the proprietors of the towns were private corporations in the business of land development, just as the Nashua Manufacturing Company was in Atherton. The lotting plans that the proprietors drew and used as the basis for granting lots are equivalent to the plans that the Nashua Manufacturing Company drew. Applying the rulings from New Boston to the proprietors lotting plans; the range roads shown on the lotting plans were "dedications of land by the owners to the use of the public...."33  The New Boston opinion goes on to clarify that the dedication is an easement only and not a reservation of the underlying fee to the soil.

In an early case where the New Hampshire Supreme Court directly addressed the issue of the title status of the rangeways, the court eludes to this dedication of easement by stating in 1869:

We are, however, inclined to regard this [rangeway] as a reservation for a public highway if needed for that purpose; and this view is fortified by the consideration that these rangeways were reserved and designated by the proprietors in their original allotments, for public highways if needed, their purpose being to embrace in each lot a certain number of acres exclusive of what might be wanted for roads; practically, however, these rangeways, when not converted into public highways by the towns, have been treated as a part of one or both of the adjoining lots. As these rangeways, then, were set apart for public highways, it would be most reasonable to construe the terms, "if ever wanted for a road," to mean a public highway rather than as reserving a private way. It might naturally be understood that a warranty of title to this rangeway would not be safe lest the town might assert a right to a road there without compensation; hence the propriety of the reservation. Besides, the reservation of a private way, if needed, without saying by whom, would be so extraordinary as to afford a strong argument against such a construction. We are of the opinion, therefore, that the reservation of the rangeway is for a public highway, and the necessity for it is to be determined by the tribunals empowered to establish such highways.34 

The Court had previously addressed the issue of what tribunals are empowered to establish highways in 1856. "By this statute [1st. section of act of July 3, 1829, Laws of 1830, pg. 573] the selectman of the towns were constituted a judicial tribunal for laying out highways within their respective towns. ... The towns themselves have no authority in relation to the subject."35  Similar statutes empowering the selectmen to lay out highways can be traced to the act of April 8, 1698.36 

Looking to secondary sources from the nineteenth century, dedication of highways by plan was common practice as described in an 1882 law journal article:

Probably the most numerous cases of dedication are those where the owners of land in a city or village, with a view to their own as well as the public advantage, lay it out into lots, with streets and avenues intersecting the same, and sell the lots with reference to such streets and avenues. In such cases the original grantor can not afterwards deprive his grantee of the benefit of having such streets or avenues kept open. The purchaser is presumed to pay an advanced price for the anticipated easement and therefore the original owner has no equitable claim to a remuneration from the public.37 

This article also illuminates the purpose of dedication by plan. That is the highways dedicated on the plans can be laid out as a public road without having to pay damages to the owner of the underlying fee. In contrast, roads that are laid out in areas where there is not a dedication require the government pay damages for the taking of a private property right for the public good. The New Hampshire Supreme Court also recognized this reason for dedication in Morgan when they stated "[i]t might naturally be understood that a warranty of title to this rangeway would not be safe lest the town might assert a right to a road there without compensation; hence the propriety of the reservation. ..."38 

THE ACTS OF 1766 AND 1791

After reviewing the common law rules on dedication and the presumption that public rights in highways are easements, we must returning to the Acts of 1766 and 1791. Recall that by these acts the legislature granted authority to the towns to exchange lands left after a road discontinuance or left for roads on the lotting plan for other lands more suitable for the construction of a road. The purpose of these acts was to allow the selectmen to exchange the rights to construct a road in one location for the rights to construct a road in another location without having to pay damages.

Nowhere in these acts does the legislature create a fee interest in the road for the town. The creation of such rights would amount to a governmental taking of private property rights.

Therefore, deeds on record from the selectmen for these reserved strips of land should be scrutinized carefully to determine the rights conveyed. The towns only had the easement right to layout a road over the dedicated lands without the necessity of paying damages. When they conveyed their rights to these lands, they were releasing the townís right to the dedication for the easement right to lay out a road in another, more suitable location, without having to pay damages. The towns could only convey the rights that they owned.

COPP V. NEAL 7 N.H. 275 (1834)

In Copp v. Neal,39  the town deeded a portion of a discontinued range road to the Plaintiff. Copp then fenced half the highway making it part of his field. The Defendantís predecessor in title deeded the abutting land calling for the conveyance to Copp as the common boundary line.40  In deciding that Copp had better title to the entire road, the Court avoided deciding if the town originally had fee title. The Court found that the Copp had actual possession of a portion of the road and extended the claim to the entire road based on the color of title obtained under the Townís deed. Copp's title was found to be superior to the Defendantís title claim, which called for the Townís conveyance as the boundary.41  In other words, the Court applied the principles of possession, under color of title, to solve the dilemma.

The Court, however, recognized in dicta that many towns were making claims to the fee in the rangeways. "There is nothing, however to preclude a town from holding the title to land over which highways are laid, and they have frequently claimed the title in cases of ancient rangeways laid out by the original proprietors."42  The Court then went on to place the burden of overcoming the presumption of easement squarely on the town to prove fee ownership in the soil.

By the statute of Feb. 8th, 1791, towns were authorized "to discontinue any highways laid out by the order of the town, and to sell the land taken up in such highway, or exchange the same for some other land where a highway may more conveniently be laid out and occupied." ... But where towns have no right of soil they can neither sell, or exchange land, over which highways are laid; and, in such cases, when highways are discontinued, the title revests in the original owner.

The possession of the owner of lands bordering on a highway may be considered a possession to the centre of the way, subject only to the easement belonging to the public, and a subsequent conveyance of said highway by the town, the owner of such lands would have a priority of possession over any grantee of the town. The public can acquire no right of soil, by prescription, in a way, used as such merely, but only an easement; and their possession would be no evidence of title, or claim beyond an easement, unless their declaration or acts necessarily involved a claim to the soil.

On these principles, the burden of proof in this case would have rested upon the town, after a discontinuance of the road, to show their claim of title to the soil as against the original owner.43 

In many towns in New Hampshire the selectmen drafted deeds purporting to convey the fee to the rangeways. Under the color of title created by these deeds landowners took possession of the rangeways. Under facts similar to Copp, the possessorís title may be superior to others. Alternatively, if possession under the townís deed was continuous and exclusive for twenty years, title may ripen through adverse possession.

RANGEWAY DEDICATIONS DISCONTINUED BY ACT OF 1842

Having resolved that the rangeways shown on the proprietorís lotting plans or described in their records are dedications of easements for highway purposes, unless there is an express reservation of the fee title, the question as to their current status must be resolved. Should landowners that abut a rangeway be concerned that the town could layout a road in the rangeway without compensation? Probably not.

The General Assembly passed a statute in 1842 stating in part:

No highway that has not been laid out agreeably to statute law, shall be deemed a public highway, unless the same has been used by the public for a term of time not less than twenty years, and no highway thrown open to the public, the use of which would not be necessary for public travel, excepting for the purposes of travel over a toll bridge, shall ever be deemed a public highway, unless the same shall be laid out agreeably to statute law.44 

This Statute was very quickly the source of litigation. In 1844 the court interpreted the statute by saying "[b]ut the legislature have power to discontinue highways, and the seventh section of chap. 53, which has been cited, must operate as a discontinuance of all highways by dedication which have not been used by the public for the term of twenty years. They shall not be deemed public highways. There is an end to them as such."45 

From the Courtís interpretation it becomes clear that the dedication of the rangeways for public highway easements were discontinued on March 1, 1843, if they were not laid out or opened and used for twenty years prior to that date.

PRIVATE EASEMENT RIGHTS IN THE RANGEWAYS

What remains of the rangeways? Bernard Waugh, Jr. addresses this issue in his manual on road law.

If subdivision lots are sold fronting a "paper street" that never gets accepted, those lots often have no other access. Since itís well-known that abutters are presumed to own title to the center of a street or way [], the owners of "front lots" sometimes claim possession of the paper street, and try to block off access to the "back lot" owners. Thatís what happened in Duchesnaye v. Silva 118 N.H. 728 (1978). But the Court held that, although the "front lot" owners did own the "soil" to the center of the platted streets abutting their lots, nevertheless every "back lot" owner had an implied easement of access over those paper streets - and not just a personal right to pass over them, but the right to develop them from end to end for public access to his/her property!46 

A careful reading of Duchesnaye shows that the implied easement created is a private easement appurtenant to the lots abutting the paper street. The private easement gives the public the right to access the abutting lots, in contrast to creating a public highway for all to use for any reason. The common law rule that "mere ... nonuse by itself does not terminate an easement" applies to these implied easements.47 

Therefore, under Duchesnaye, it would follow that most rangeways are encumbered to this day by private viatic easements benefiting lots abutting the rangeway. Exactly which lots are benefited, and the full extent of the private rights, is an open question.

ENDNOTES

1. See 24 - 29 N.H. State Papers; Township Grants of Lands in New Hampshire.
2. Duchesnaye v. Silva, 118 N.H. 728(1978), Copp v. Neal 7 N.H. 275 (1834), Makepeach v. Worden, 1 N.H. 16 (1817).
3. Blackís Law Dictionary 993 (1st ed. 1891).
4. Id. at 1237. (Emphasis in original).
5. Copp v. Henniker, 55 N.H. 179, 186 (1875).
6. 1 Jeremy Belknap, The History of New Hampshire 16 (1812). For a review of the Mason & Georges patents, See Belknap Ch 1.
7. 29 Albert S. Batchellor N.H. State Papers - Documents Relating to The Masonian Patent 214 (1896).
8. The selling price was "fifteen Hundred Pounds of good & lawful Money of ye Province of New-Hampshire" Id.
9. See Vol. 1, 2 & 3 Laws of N.H., Commissions of Royal Governors.
10. 29 State Papers at 214.
11. See 27 N.H. State Papers (1896) and Little v. Downing, 37 N.H. 355 (1858).
12. 26 N.H. State Papers at 217. (Punctuation added).
13. See Daniel Lancaster The History of Gilmanton 46 (1845).
14. See James L. Garvin, Dublin Seminar for New England Folkllife Annual Proceedings: The Range Township in Eighteenth-Century New Hampshire 62 (1980).
15. Proprietors of Cornish v. Kenrick, 1 Smith 270, 271-275 (1809).
16. Justice Smith recognizes that the very early colonial grants included a de facto power of government. The initial settlement grants by the King necessitated some type of governmental power as these grants were establishing the English foothold in the new world. After a formal British colonial government was established, the powers to subdivide land and municipal government were bifurcated.
17. See Lancaster History of Gilmanton: Charter of Gilmanton at 18.
18. See Town of Alton (A.K.A. New Durham Gore) corporate petitions, XI N.H. State Papers 56 (1882).
19. New Hampshire Historical Society, Richard W. Moore, At What Cost? Shaping the Land We Call New Hampshire: Lines on the Land, 38 (1992).
20. See lotting plans of Alton, 27 N.H. State Papers 60 and foot note 11.
21. 3 Laws of N.H. 382 (1915) (Effective Jan. 10, 1766, repealed June 20, 1792).
22. 5 Laws of N.H. 577 (1916)(Effective Feb. 8, 1791, repealed July 3, 1829).
23. Mark Cerasano, Franklin Pierce Law Center, Environmental Law Clinic, A Brief Survey of Law and History Relative to Range Roads in New Hampshire 2 (1981).
24. See Eaton v. Rivard 131 N.H. 85, 87 (1988).
25. 7 N.H. 275 (1834).
26. Copp v. Neal, 7 N.H. 275, 276 (1834.)
27. See Town road files at the State of N.H. Archives.
28. Makepeace v. Worden, 1 N.H. 16, 16 (1816)(Citing 6 Mass. Rep. 454).
29. Duchesnaye v. Silva, 118 N.H. 728, 732 (1978).
30. State v. New Boston, 11 N.H. 407, 408 (1840)(Citing State vs. Hampton, 1 N.H. Rep. 25; State vs. Campton, 2 N.H. Rep. 513; Pritchard vs. Atkinson, 3 N.H. Rep. 338, and 4 N.H. Rep. 9; Scott et al. vs. Wilson, 3 N.H. Rep. 325; Barker vs. Clark, 4 N.H. Rep. 383; Hopkins et al. vs. Crombie et als., 4 N.H. Rep. 523). (Emphasis added).
31. Id. at 409. (Citation omitted)(Emphasis added).
32. State v. Atherton, 16 N.H. 203, 214 (1844). See Duchesnaye v. Silva, 118 N.H. 728(1978). (Emphasis added).
33. 11 N.H. at 408.
34. Morgan v. Palmer, 48 N.H. 336, 337 (1869).
35. Hayword v. Charlestown, 34 N.H. 23, 26 (1856) (Citation omitted).
36. 1 Laws of N.H. 600.
37. Charles B. Elliott, Dedication, 15 Cent. L.J. 422 (1882).
38. Morgan at 337.
39. 7 N.H. 275 (1834).
40. Id. at 276.
41. Id. at 279.
42. Id. at 276.
43. Id. at 277 (Citations omitted).
44. N.H. Stat. Ch. 53 (Passed December 20, 1842, effective March 1, 1843.
45. State v. Atherton, 16 N.H. 203, 213 (1844)(Emphasis added).
46. H. Bernard Waugh, Jr., A Hard Road To Travel, 25 (1997)(Emphasis in original).
47. Duchesnaye at 734.

The Author

Attorney Stephan T. Nix is a practicing attorney and licensed land surveyor, Gilford, New Hampshire.

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